Terms & Conditions

Terms and Conditions of Sale for Data Licensing

Date of agreement detailed on Marketing Data Ltd Order Confirmation BETWEEN The Company and The Licensee

DEFINITIONS

“The Company”  Means Marketing Data Ltd and/or Third Party Data Partner

“The Licensee” Means the person or organisation to which the Data is licensed under the terms contained in this document.

“The Price”  Means costs and all associated costs detailed in the Order Confirmation supplied separately to The Licensee

“The Delivery Date” Means the date the Company supplies the Data to the Licensee

“The Data” Means information of any kind or service, however presented whether comprising words, numbers, graphs, maps, pictures or in any other form which is supplied by us under this Licence

“Licence”  Means the licence for the use of Data between the Licensee and us governed by these terms

“Single Use” Means use on one occasion only for one specific Direct Marketing campaign

“Multi Use”  Means use on multiple occasions for Direct Marketing Campaigns, however is subject to clause 3.3

1. LICENCE

1.1 The Company hereby grants to the Licensee a non-exclusive licence to use the Data strictly in accordance with these terms for Direct Marketing purposes in accordance with Clauses 2 and 3 below and further limited/defined on the Order Confirmation.

1.2 In consideration of the Licence hereby granted the Licensee will pay the agreed Licence fee as set out on the order form confirmation supplied by us.

1.3 The Company agrees to grant the Licence to the Licensee for Direct Marketing purposes on the same terms as those contained in this document.   

1.4 The Licence will contain a provision that The Company shall be permitted to enforce the terms of the Licence in accordance with The 1999 Act.

1.5 Except at our sole discretion this Agreement cannot be cancelled once it has been accepted.

2. USE OF DATA

2.1 In the Licence the Licensee shall warrant that the purpose for which the Data is being used is only in connection with a Direct Marketing campaign for the purposes of the Licensee’s business as discussed prior to entering into the Licence.

2.2 The Licence shall contain a clause that that the Data shall not be used for any other purpose than the agreed purpose as set out in clause 2.1.

2.3 It is agreed that, in the event of a misuse of any part of the Data, the Licensee will compensate The Company to the full value of the Data in addition to any other remedy or damages that we may be entitled to.

2.4 The License shall contain an obligation on the Licensee to indemnify The Company in respect of any losses, liabilities and costs (including reasonable expenses) however arising or incurred as a result of any breach of its obligations under the Licence or unauthorised use of the Data by the Licensee.

3. RESTRICTIONS

3.1 The Licence shall contain the following restrictions:

3.2 The Licensee will ensure that the Data will not be used as part of any other product marketed by the Licensee that may compete with any product of ours. In particular, the Licensee will not use the Data or permit the use of the Data for purposes connected with the business of publishing business Directories or electronic media where the content includes classified advertising.

3.3 The Licensee agrees that the Data will only be used for Direct Marketing purposes no more frequently than once in a month and it will not be included in any product or service that is sold by the Licensee.

3.4 We may insert a number of Seeds into the Data to allow us to monitor the number of uses of the Data and ensure that the conditions of this Licence are adhered to by the Licensee. It is agreed that these records will not be deleted by the Licensee.  Use of a Seed will constitute prima facie proof that the Data has been used.

3.5 The Licensee shall not use the Data for any purpose in connection with the selling of guns or ammunition, the distribution of pornographic material, promoting religious views and any other purpose which we may consider immoral or inappropriate.

3.6 We reserve the right to treat any use of the Data which is not permitted under this Agreement as a Data order for an appropriate number of single use or multiple use licences as would be required to permit the unauthorised use and a licence fee shall be payable and calculated according to our Data Rates applicable at the time of the unauthorised use of the Data.

4. EMAIL

4.1 Where the Data is to be supplied under this licence includes the email field the following provisions shall apply:

4.2 If the Licensee requests that its own list of clients is excluded from the data supplied we must be provided with a suppression file that clearly states the requested exclusions prior to the Order Date.

4.3 If the Licensee requires multi-contacts at the same enterprise or generic emails to be excluded this must be communicated to us prior to the Order Date.

4.4 Solely in relation to the Licensee’s first use of the Data, any undeliverable emails confirmed as Hard Bounces will be replaced free of charge provided we are supplied with the list of Hard Bounces within 30 days of delivery of the Data. This replacement will take the form of like-for-like emails where available or, alternatively a credit in the form of an email data pool to select the same number of emails from any of those available. 

4.5 The list of Hard Bounces must be supplied to us in one of the Available Formats in order to allow us to provide replacements under clause 4.4.  We are not obliged to replace undeliverable emails which are returned to us in email format.

4.6 We do not replace emails that have been provided as replacements under clause 4.4 that are not deliverable for any reason. We are not responsible for undeliverable emails attributable to Soft Bounces.

4.7 The Licensee may not send more than 12 emails to any one Prospect in any 12 month period, this is subject the restrictions, if any, agreed prior to the Order Date.

4.8 We reserve the right to terminate or modify this Licence if we believe that the Licensee’s use of the email Data is inappropriate or in breach of these terms or we have been misled as to the use of the email Data.

4.9 The Licensee must ensure that there is a simple mechanism for the recipient to opt out of receiving any further emails or other communications. Details of any recipients who choose to opt out must be forwarded to The Company within 7 days of the request.  Please email details of opt out requests to your designated account manager.

5. THE PRICE AND PAYMENT

5.1 If credit is given, payment is due no later than the agreed time and date stated on  the order form confirmation and invoice.

5.2 The time for payment shall be of the essence to this contract.

5.3 Any sums due under this Agreement shall be paid without counterclaim or set off. The Licensee will pay interest on sums paid late at the rate of 5% above the base lending rate of Santander plc bank and £50 administration charge in force from time to time, the Company will give the Licensee 7 days to pay the outstanding amount including the 5% interest and administration charge. In the case of debt recovery action taken by the Company against the Licensee an administration charge of £50.00 will be levied for all debts that are passed for debt recovery to our company solicitors, the Licensee will also be liable for all debt recovery, solicitors and court fees.  This right is without prejudice to any other remedy that we may be entitled to.

5.4 In the event of late payment by the Licensee we reserve the right (without prejudice to any other rights and remedies) to suspend the Licence hereby granted by servingnotice in writing.  The Licensee is not permitted to use the Data during the period which the Licence is suspended.

6. DELIVERY

The Company will endeavour to have the Data ready for delivery by the agreed date for delivery but all dates given our approximate only, but it is agreed that the Licensee shall not have the right to terminate this Agreement by reason of our failure to deliver the Data by the agreed date for delivery nor shall The Company by held liable for any loss or damage whatsoever suffered by the licensee.

7. ADVERTISING STANDARDS, DATA PROTECTION AND LEGAL COMPLIANCE

7.1 We will endeavour to comply with the British Codes of Advertising and Sales Promotion and with the DMA UK Direct Marketing Code of Practice and other codes of advertising standards laid down on a self-regulatory basis.

7.2 Nothing in this Agreement relating to the confidentiality or secrecy of the Data shall prevent or hinder either us or you from complying with our legal obligations as to disclosure or otherwise under the Consumer Credit Act 1974 and the Data Protection Act 1998.

7.3 You will ensure that any use to which the Data is put complies with, and in using the Data, you shall comply with all applicable laws, regulations and codes of practice from time to time including, without limitation, the Privacy and Electronic Communications Regulations 2003, those of the Post Office and the Universal Postal Union. You represent, warrant and undertake that

i) You have undertaken and shall maintain all necessary notifications required for your use of the Data as data controller as required under the Data Protection Act 1998;

ii) You shall carry out all Direct Marketing Campaigns in compliance with, and shall ensure that all materials and scripts relating thereto shall comply with all relevant rules and regulations;

iii) You shall not use the Data in connection with the delivery or communication of any defamatory, malicious or threatening statements or materials or materials, which infringe the IP Rights of any third party.

8. WARRANTIES AND LIABILITY

8.1 We warrant that the Data conforms to the agreed specification and our services will be provided in a good and workmanlike manner. We are not liable for any defect caused to the physical media on which the Data is stored by intentional damage, wear and tear, or failure to follow instructions.

8.2 We do not warrant that the Data is fit for any particular purpose of the Licensee.

8.3 Whilst the Company has used all reasonable endeavours to ensure the accuracy of the information contained in the Data the Licensee acknowledges that the Company does not guarantee or warrant that the Data is without errors or omissions and the accuracy of the Data is not a condition of the contract and the Licensee will not be entitled to refuse to pay any amount due or part thereof by reason of errors or omissions in the Data supplied under this licence. The Company accepts no liability for no business being generated for the Licensee and the Licensee cannot and will not request compensation for such reasons.

8.4 The Licensee acknowledges that the Company may plant no more than three ‘seeds’ per 1,000 Recipients for the purpose of enforcing any breaches of  this Licence

8.5 Though the Company complies with the best code of practice laid out by the DMA for matching against the TPS, CTPS, MPS and Bereavement registers before supplying the data to the Licensee. It is the responsibility of the Licensee to continue matching the data against these files at least every 28 days after the purchasing of the data. The Company will not be responsible for any complaints or fines placed against the Licensee with regards to TPS, CTPS, MPS or Bereavement registers.

9. ASSIGNMENT

9.1 The Licensee shall not be entitled to assign or otherwise deal with the benefit or burden of this licence without the prior written consent of the Company but the Company shall be entitled to assign or sub-contract the fulfilment of the Contract or any part thereof.

9.2 In the event the Company consents to an assignment or other dealing of this Licence the Licensee’s indemnity to the Company at clause 9.4 hereof shall continue to apply and be enforceable by the Company notwithstanding the cause of the circumstances giving rise to the enforcement is the fault of a third party.

10. COPYRIGHTS AND CONFIDENTIAL INFORMATION

10.1 Any intellectual property rights in the Data including copyright and database right shall remain our property and the property of our Data Supplier.

10.2 The Licensee acknowledges any existing intellectual property rights of our Data Supplier when information has been supplied to us and will not acquire any rights in relation to the information supplied by the Data Supplier’s intellectual property rights including, but not limited to, database right, copyright, trademarks other than expressly granted in this licence.

10.3 All Data supplied to the Licensee under this licence is supplied in strict confidence for the exclusive purposes of its internal business only. The Licensee warrants not to disclose such information to any person not employed in their own business

10.4 The Licensee will not make any copies of the Data and agrees to store the Data separately from any other information in a secure environment. The Licensee will not permit employees or any other person to make a copy of the Data.

10.5 The Licensee will not disclose the Data to any customers or third parties except in accordance with this Licence or with our prior written consent.

10.6 Any additional information and documents supplied by us to the Licensee shall be and remain confidential and may not be disclosed to any Third Party without express written authority from us.

10.7 The Licensee agrees to indemnify us on an unqualified basis for any loss or damage whatsoever caused by breach of this clause 12 by the Licensee.

10.8 The Licensee agrees to notify us immediately on becoming aware of any unauthorised use of the Data.

11. TERMINATION

11.1 Once this Agreement has been signed by the Licensee and we have received the returned (unaltered) copy, the terms are irrevocably binding on the parties. If The Licensee cancels the order the Licensee shall pay to the Company the sum of £250.00 or 50% of the signed Order Confirmation Value (whichever is the greater) within seven days of the cancellation, Such cancellation shall only be effective if provided in writing from the Licensee to the Company. Prior to receipt of the signed form by The Company, we may withdraw the offer at any time, offers will automatically be withdrawn if the Agreement is not entered into within 14 days of the date the order form is sent to the Licensee.  Order forms returned following the expiry of 14 days may be accepted at our discretion.

11.2 Once an order has been completed, refunds are not given in any circumstance, by  signing the order form and/or these term’s and condition’s you accept and agree to these term’s and condition’s.

11.3 Returns policy is replacement of like for like records where applicable. Replacements of records are subject to verification of the data by Marketing Data Ltd and the company has final verdict on if the data is suitable for replacement

11.4 We shall be entitled to (without prejudice to any other rights or remedies) immediately suspend or terminate this Licence if:

(a) The Licensee commits any breach of this Licence and fails to remedy that breach (if capable of remedy) within 7 days from receiving written notice from us; or

(b) The Licensee comes to any arrangements with its creditors, becomes bankrupt or has appointed a receiver, administrative receiver or administrator over the whole or part of the property; or

(c) Any resolutions are passed or order is made for the winding up of the Licensee.

11.5 The Licensee will destroy any Data in its possession on the termination of this Agreement for whatever reason

12. FORCE MAJEURE

The Company shall not be liable to the Licensee or be deemed in breach of any of the terms of this Agreement for failure or delay to perform any term or condition of this Agreement as a result of conditions beyond our control such as, but not limited to, war, strikes, fires, floods, acts of God, governmental restrictions, power failures, industrial action or damage or destruction of any network facilities or servers.

13. ENFORCEABILITY

If at any time one or more of these terms becomes invalid illegal or unenforceable under any law or is held by the Court to be invalid illegal or unenforceable the validity and enforceability of the remaining provisions hereof shall not in any way be affected or impaired thereby. The Company reserves the right to make any amendments without notice to these terms, any amendments made to these terms automatically come into force and will over rule previous orders and terms.

14. JURISDICTION

14.1 The formation, construction, and performance of this Agreement shall be governed in all respects by English Law.

14.2 It is agreed that the English courts shall have the sole jurisdiction to decide any dispute arising out of or in connection with the formation, construction, or performance of this contract.

Updated 09/12/09